United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' MOTION TO
DISMISS (Docket No. 4). For the reasons stated below,
Defendants' MOTION TO DISMISS (Docket No. 4) will be
granted in part and denied in part. The motion will be
granted as it pertains to Count One, and denied as it
pertains to Count Three.
Suzanne Gilbertson ("Gilbertson") was employed as
the Food Services Coordinator for King & Queen County
Public Schools ("the School System"). (Compl.,
Docket No. 1, ¶ 1) . In January 2015, Gilbertson learned
that she had cancer and took time off for surgery. (Compl.
¶¶ 7-17). The School System denied Gilbertson's
request for an extension of leave under the Family &
Medical Leave Act ("FMLA"), allegedly over failure
to return certain forms. (Compl. ¶¶ 12-16). On
March 23, 2015, Gilbertson filed a grievance against her
supervisor, superintendent Stanley B. Jones
("Jones'7), over the denial of FMLA leave and over
the reorganization of her department which occurred in her
absence. (Compl. ¶¶ 3, 16-17).
April 15, 2015, Jones and the School System decided to
eliminate Gilbertson's position. (Compl. ¶ 18).
According to Gilbertson, "[t]he alleged basis for the
decision was budgetary concerns, but the truth is that Dr.
Jones and the School System were intentionally retaliating
against Gilbertson for her FMLA- related grievance."
(Compl. ¶ 18). Gilbertson further alleges that "on
May 1, 2015, Dr. Jones and the School System suspended
Gilbertson with pay . . . The stated reason for the
'suspension' was performance, but this reason was
false .... In truth, the suspension was in retaliation for
Gilbertson's FMLA-related grievance." (Compl. ¶
19). The Complaint states that
[s]oon after that, Jones defamed Gilbertson, both in
TV and in print. First, on May 7, 2015, as part of a news
story on WTVR titled "Would you eat this? Charred food
served at area high school" which discussed food quality
problems at the School System, Dr. Jones told the TV
station that Gilbertson had been placed on suspension
and then stated, although he could not go into details,
"if an employee is suspended, generally, it's going
to be related to performance." In other
words, he told the TV station that Gilbertson had performance
problems and that her performance problems were the reason
for the food service problems that the station was reporting
(Compl. ¶ 20) (emphasis added). Jones is alleged to have
repeated similar statements to a local newspaper. (Compl.
employment with the School System ended on June 30, 2015.
(Compl. ¶ 23). Gilbertson filed this Complaint on April
29, 2016. The Complaint alleges three counts. Count One
(against Jones and the School System) alleges "Due
Process Violation: Liberty Interest" on the basis of
Jones's press statements. (Compl. ¶ 25-31). Count
Two (against the School System) alleges "Wrongful
Termination and Interference Claims under the Family &
Medical Leave Act." (Compl. ¶ 32-39). Count Three
(against Jones) alleges "Defamation" on the basis
of Jones's statements in the press. (Compl. ¶
23, 2016, Jones and the School System (collectively
"Defendants") filed a Motion to Dismiss Counts One
and Three. (Docket No. 4).
motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the
legal sufficiency of a complaint. Jordan v. Alternative
Resources Corp., 458 F.3d 332, 338 (4th Cir.2006).
Fed.R.Civ.P. 8(a)(2) "requires only a short and plain
statement of the claim showing that the pleader is entitled
to relief, in order to give the defendant fair notice of what
the ... claim is and the grounds upon which it rests."
McCleary-Evans v. Maryland Dep't of Transp., State
Highway Admin., 780 F.3d 582, 585 (4th Cir.2015) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
deciding a motion to dismiss under Rule 12(b)(6), a court
"draw[s] all reasonable inferences in favor of the
plaintiff." Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.
2009). However, while the court must "will accept the
pleader's description of what happened" and
"any conclusions that can be reasonably drawn therefrom,
" the court "need not accept conclusory allegations
encompassing the legal effects of the pleaded facts, "
Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1357 (3d ed.1998); Chamblee v. Old
Dominion Sec. Co., L.L.C., No. 3:13CV820, 2014 WL
1415095, *4 (E.D. Va. 2014). Nor is the court required to
accept as true a legal conclusion unsupported by factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). "Twombly and Iqbal also made clear that the
analytical approach for evaluating Rule 12(b)(6) motions to
dismiss requires courts to reject conclusory allegations that
amount to mere formulaic recitation of the elements of a
claim and to conduct a context-specific analysis to determine
whether the well-pleaded factual allegations plausibly
suggest an entitlement to relief." Wright & Miller,
supra; Chamblee, supra.
Plaintiff Fails to State the Allegations of Serious Character
Defect as Required to Sustain the Due Process Claim Alleged
in Count One
liberty interests protected by the Due Process Clause go
beyond physical security: these liberty interests are also
implicated "[w]here a person's good name,
reputation, honor, or integrity is at stake because of what
the government is doing to him." Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971); Doe v.
Rector & Visitors of George Mason Univ., 132
F.Supp.3d 712, 722 (E.D. Va. 2015). Accordingly, federal law
recognizes a cause of action where: (1) a state actor's
statements stigmatize a plaintiff by alleging that plaintiff
suffers from a serious character defect; (2) such statements
are accompanied a negative change in plaintiff's
employment status; (3) the statements were published; and (4)
the statements were false. Greene v. Scott, 637
F.App'x 749, 751 (4th Cir. 2016) (unpublished) (relying
on Ridpath v. Bd. of Governors Marshall Univ., 447
F.3d 292, 308 (4th Cir. 2006)).
stage, Defendants do not contest that Jones's statements
accompanied Gilbertson's firing, that the statements were
public, or that the statements were false. Therefore, the
sufficiency of Count One turns on the first requirement:
whether Jones's statements alleged a serious character
line of cases recognizing a Due Process stigma claim arise
out of Constantineau, 400 U.S. at 433, and Paul
v. Davis, 424 U.S. 693 (1976). In
Constantineau, the Supreme Court held that a Due
Process liberty interest was implicated where a police chief
posted a notice in liquor stores that sales of liquor were
forbidden to plaintiff, pursuant to a statute permitting
posting of such notices when excessive drinkers exhibited
certain traits. Constantineau, 400 U.S. at 434-439.
In Paul, the Supreme Court held that no liberty
interest was implicated where police chiefs included a
photograph of plaintiff identifying him as an active
shoplifter, noting that "reputation alone, "
without harm to a tangible interest such as employment, was
insufficient to implicate a Due Process liberty interest.
Paul, 424 U.S. at 701. The origins of the Due
Process stigma claim inform the level of seriousness required
for allegedly defamatory statements by state actors to be
actionable under the Due Process Clause of the Fifth and
Fourteenth Amendments. Robertson v. Rogers, 679 F.2d
1090, 1092 (4th Cir. 1982) (stating, in employment Due
Process stigma case, that “[i]t is noteworthy that the
Court's dictum in Paul v. Davis ... was made in
the context of allegations of criminality.").
that not all disparagement by a state actor is
constitutionally actionable, courts employ the "serious
character defect" threshold. To be actionable, a state
actor's allegations must "imply the existence of
serious character defects such as dishonesty or
immorality" so that the statements "might seriously
damage [plaintiff's] standing and associations in his
community" or foreclose "his freedom to take
advantage of other employment opportunities." Zepp
v. Rehrmann, 70 F.3d 381, 387-88 (4th Cir. 1996)
(relying on Board of Regents v. Roth, 408 U.S. 564,
573 (1972)); see also Sciolino v. City of Newport News,
Va., 480 F.3d 642, 647 (4th Cir. 2007) (quoting
Robertson, 679 F.2d at 1092). Allegations of fraud
or dishonesty rise to the level of qualifying "serious
character defects." E.g., Sciolino,
480 F.3d at 647; Boston v. Webb, 783 F.2d 1163,
1165-66 (4th Cir. 1986) (allegation that employee received
bribe sufficient to state liberty claim); McNeill v.
Butz, 480 F.2d 314, 319-320 (4th Cir. 1973) (allegation
connecting employee with financial irregularities sufficient
to state liberty claim) .
allegations of incompetence, standing alone, do not imply
serious character defects, and are not actionable under the
Due Process Clause. Sciolino, 480 F.3d at 647
(relying on Ridpath, 447 F.3d at 308-09); see
also Greene, 637 F.App'x at 751 (statements
regarding inadequate work product did not support claim);
Zepp, 79 F.3d at 388 (statements regarding
"management problems" did not support claim);
Robertson, 67 9 F.2d at 1092 (statements regarding
incompetence did not support claim); Merritt v.
Mullen, 49 F.Supp.2d 846, 848-49 (E.D. Va. 1999)
(statements regarding "mismanagement" did not
support claim); Zarrelli v. City of Norfolk, No.
2:13CV447, 2014 WL 2860295, at *6 (E.D. Va. Jun. 23, 2014)
(statements regarding violations of office policy did not
support claim). The rule that incompetence alone does not